An individual uses force against another when that is the intent of his action.  Can it be said that an individual uses force against another when that individual does not intend that his action result in the application of force against another?  The United States Supreme Court has recently answered that question “yes.”  (Voisine v. United States, 2016 U.S. Lexis 4061.)

The Court’s decision should really come as no big surprise.  There is a strong political movement in the United States to ban and restrict an individual’s access to firearms and ammunition. Had the Court not ruled in the manner that it did less United States citizens would have been stripped of their Second Amendment right.  Although, what is surprising about the Court’s decision is how this independent branch of government politicized itself by thrusting itself to a side of the political agenda.

Do as we (want you to) mean but not as you say… The background of Voisine is that federal law imposes a lifetime ban on the possession of firearms or ammunition having a connection to interstate commerce for individuals convicted of a misdemeanor crime of domestic violence.  (18 U.S.C. 922(g)(9).)  Congress specified in 18 U.S.C. 921(a)(33)(A)(ii) that a crime of domestic violence has as an element the “use or attempted use of force” against a person in a specified domestic relationship.  At least thirty-four states and the District of Columbia have adopted a definition of assault to include reckless conduct to fall within its purview, as opposed to just criminalizing, intentional or knowing assault.  If the Court did not find that an unintended application of force (i.e., one caused by reckless conduct) against another falls within the proscription of 18 U.S.C. 922(g)(9), then individuals convicted of assault in over two-thirds of the jurisdictions in the Union would not be prohibited under federal law from possession firearms and ammunition.

However, the term “use or attempted use of force” generally connotes a knowing and intentional action.  (See, United States v Castleman, (2014) 134 S.Ct. 1405, 1415.) The federal proscription is clear on its face.  Anyone convicted of a crime of domestic violence who knowingly or intentionally uses or attempts to use force upon another is prohibited from owning or possessing firearms or ammunition.  But, the problem with the Court’s analysis is that it stretches the term “use” of force to encompass reckless conduct that accidentally causes the application of force upon another.

Had Congress intended that any individual convicted of domestic violence by a reckless assault be prohibited for life from owning or possessing firearms, Congress should have written 18 U.S.C. 921(a)(33)(A)(ii) to apply to anyone convicted under state law of domestic violence by assault or battery.  Instead of telling Congress to go back and reword their statute, the Court assures us that term “use of force” on its face encompasses reckless conduct.  Interestingly enough, the Court assures us that they are correct in their interpretation of the statute because they checked the dictionary to look up the term “use.”

Despite the Court’s mental gymnastics in reaching its conclusion, its intent is clear.  The right to keep and bear arms in self-defense is being banned and restricted case by case.  Of the 8 voting Justices in the Voisine decision, Justice Thomas was the only one to voice concern over the nullification of the Second Amendment.  While it is true that the Court in The District of Columbia v. Heller reaffirmed the lawfulness of the “longstanding prohibitions on the possession of firearms by felons and the mentally ill” – it has not found that 18 U.S.C. 922(g)(9), which was just passed some 20 years ago, is such a longstanding prohibition.  (District of Columbia v. Heller, (2008) 554 U.S. 570, 626-627.) When a law seeks to completely infringe upon a fundamental constitutional right for a class of individuals, strict scrutiny should apply.  (Heller vs. District of Columbia, (2011) 670 F.3d 1244, 1252.)  Of course, the Voisine court failed to address the constitutional issue pertaining to 18 U.S.C 922(g)(9), except to dismiss its application in a footnote.

Here, the true question isn’t just whether individuals who are convicted of a misdemeanor crime of domestic violence should be prohibited for life from owning or possessing firearms and ammunition having a connection with interstate commerce.  The question is to which class of individuals will Congress seek to apply the prohibition to next, and will the Court reaffirm their ability to do so.  Voisine ratifies the slippery slope method of curtailing the Second Amendment.  We should all beware that our right to keep and bear arms in self-defense will be infringed if we happen to fall within a class that Congress happens to disfavor next.